When Judges Overstep: Notarizing Private Deeds as Ex-Officio Notaries

A judge's authority to notarize documents is not unlimited. In Fuentes v. Buno (A.M. No. MTJ-99-1204, July 28, 2008), the Supreme Court reminded the bench that judges acting as ex-officio notaries public must strictly follow the rules—or face administrative sanctions. The case shows where judicial convenience ends and impropriety begins.

The Case: A Judge Who Prepared a Deed of Sale

Judge Romualdo G. Buno of the Municipal Circuit Trial Court (MCTC) of Talibon-Getafe, Bohol, prepared and notarized an "Extra-Judicial Partition with Simultaneous Absolute Deed of Sale" for a piece of agricultural land. The document was executed by the heirs of Bernardo Fuentes, including complainant Geronimo Fuentes, who claimed he never authorized the sale.

Geronimo's Special Power of Attorney (SPA) only allowed his brother Alejandro to mortgage the property—not to sell it. Despite this, the judge proceeded with the notarization after Alejandro and the family assured him that Geronimo's SPA was "coming." The transaction pushed through, and Geronimo later filed an administrative complaint against the judge for abuse of authority and graft.

The Issue: Scope of a Judge's Notarial Authority

The central question was whether Judge Buno, as an ex-officio notary public, could lawfully prepare and notarize a private deed of sale that had no connection to his judicial functions.

The Ruling: Strict Limits on Ex-Officio Notarization

The Supreme Court found Judge Buno liable for failing to comply with SC Circular No. 1-90 and the Rules on Notarial Practice. He was fined P12,000.00, deducted from the amount withheld from his retirement benefits.

The Court explained the governing rules:

• General rule: MTC and MCTC judges may act as notaries public ex officio only for documents connected with their official functions. They may not prepare and acknowledge private documents, contracts, or deeds of conveyance that bear no direct relation to their duties as judges.

• Exception: In municipalities with no lawyers or notaries public, judges may perform any act within the competency of a regular notary public, but only under two conditions: (1) all notarial fees must go to the government and be turned over to the municipal treasurer; and (2) the notarized document must contain a certification attesting to the lack of any lawyer or notary public in that municipality or circuit.

Judge Buno failed on both counts. He did not include the required certification in the deed, and he did not indicate whether he charged notarial fees or turned them over to the municipal treasurer. His good faith was "beside the point" because he failed to strictly observe the requirements.

The Court also noted that the judge notarized the document without the SPA of one of the vendors—a violation of the Rules on Notarial Practice, which prohibit notarizing incomplete or improper documents. This omission gave rise to the legal dispute over the scope of the attorney-in-fact's authority.

Why This Matters

The case underscores a fundamental principle: judges must avoid any hint of impropriety. Even when acting outside the courtroom, judges are bound by the Code of Judicial Conduct to regulate their extra-judicial activities to minimize the risk of conflict with their judicial duties. Preparing private deeds of sale is not part of a judge's job, and doing so without following the prescribed safeguards invites administrative liability.

Practical Takeaways

• Judges have limited notarial authority. They may notarize only documents related to their official functions, unless assigned to an area with no lawyers or notaries—and even then, strict conditions apply.
• Certification is mandatory. A judge acting as an ex-officio notary in a lawyer-less area must state in the document itself that no lawyer or notary public is available.
• Notarial fees belong to the government. Any fees collected must be turned over to the municipal treasurer, not kept personally.
• Never notarize incomplete documents. A notary must not notarize an instrument that lacks required signatures or authorizations, such as a missing SPA.
• Good faith is not a defense. Failure to follow clear rules—even with honest intentions—can still result in administrative penalties.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.